An African refugee drinks a cup of coffee in a Budapest homeless shelter while pondering his future. (UNHCR/ B Szandelszky)

Brussels, 28 February 2013 – In 1999, when European leaders met in Tampere, Finland, they promised to create a space of freedom, security and justice. Initial euphoria quickly gave way to the introduction of the Dublin Regulation in 2003, a law that determines state responsibility for assessing asylum applications in the EU. With the recent passing of the tenth anniversary of the regulation's introduction, it has become the cornerstone, rather than one element, of the Common European Asylum System.

During the last decade the Dublin Regulation has drawn the ire of NGO and refugees alike. Countless reports have shown that 'the Dublin system', which mostly transfers asylum seekers to the first EU country they arrived to, is at odds with refugee protection.

We have come to the point where not only is it obvious the Dublin system does not protect asylum seekers, it defies both good sense and logic. It is not a cornerstone of protection, but rather of confusion, and adversity for most asylum seekers who are subjected to it.

Worthy goal, unworthy implementation. The original intention of the Dublin system, to prevent asylum seekers from being left in orbit, is still a worthy aspiration. There ought to be a system that ensures that asylum seekers are not ignored by governments. But, practically speaking, it has made life extremely difficult for asylum seekers, including the violation of fundamental rights.

Despite the worthy goal, asylum seekers are still 'in orbit'. Against all opposition they try to reach their EU state of preference, or try to escape from countries where they do not feel protected. Our current Dublin Regulation research project indicates that, on average, people make three to four journeys between EU countries. Moreover, the Dublin system leads to the forcible separation of asylum seekers from their families in other EU states, a gross violation of their fundamental rights.

To asylum seekers, 'protection' is not only a legal entitlement connected to the 1951 UN refugee convention, but also about family unity and access to appropriate basic fundamental services. Asylum seekers go wherever they feel safest: where they know the language, or people of their nationality. Safety is where their family reside, where they have a roof over their heads and be self-sufficient, a central aspiration of asylum seekers.

Most asylum seekers do not know about the one aspect of the Dublin Regulation capable of improving their circumstances: articles 3 and 15, known respectively as the 'humanitarian' and 'sovereignty' clauses. EU states rarely use these clauses, even if families become separated as a result.

Even worse, EU states do not provide information about these clauses to asylum seekers. Consequently, asylum seekers are unable to fully participate in the Dublin process. Application of the humanitarian and sovereignty clauses requires knowledge of the individual circumstances of asylum seekers; unless states engage with asylum seekers in the process, this information cannot come to the fore.

Changes in sight? The ECRE/Forum Réfugiés report notes that asylum seekers in the Dublin system are “frequently treated as a secondary category of people subject to fewer entitlements”. For years asylum seekers have expressed similar sentiments to JRS, of feeling like 'banana crates' being tossed between EU countries with little to no care for their personal aspirations. They have become objectified. Most alarming is this confusion and adversity are caused for no discernible reason. EU asylum systems have not improved; in any other sector, such a poor policy would be scrapped.

On an optimistic note, the European Parliament and Council of the EU plan to reform the Dublin Regulation. It will contain a new provision on the 'right to information' , obliging EU states to more thoroughly inform asylum seekers, as well as improved access to remedies, such as opportunities to suspend a transfer while an appeals is in course.

Though JRS worries that EU states will continue detaining asylum seekers, only in clearly defined circumstances. Importantly, states will only be able to detain unless 'other less coercive measures' do not work. This means that detention cannot be a knee-jerk response to Dublin asylum seekers.

Notwithstanding these important changes, unless EU states improve their asylum systems and the Dublin system better addresses the motivations and aspirations of these forced migrants, the protection system will continue failing those who need it.

Philip Amaral, JRS Europe Advocacy and Communications Coordinator

This text is adapted from a speech given by Philip Amaral of JRS Europe at a European Parliament conference held on 31 January 2013, hosted by Ms Cecilia Wikström, MEP, and co-organised by ECRE and Forum Réfugiés.